Muhammad Saeed Ullah Khan Vs Secretary,Government Of N.W.F.P. Excise And Taxation Department,Peshawar And Another

IN THE FEDERAL SHARIAT COURT

(Original Jurisdiction)

PRESENT

MR. JUSTICE ALLAMA DR. FIDA MUHAMMAD KHAN

MR. JUSTICE RIZWAN ALIDODANI

MR. JUSTICE SHEIKH AHMAD FAROOQ

SHARIAT PETITION NO. 1/1 OF 2002

Zahida Haq widow of Dr. Col. Syed Ihsan-Ul-Haq, R/o. 44-K, Model Town, Lahore

Petitioner

Versus

1.Government of Pakistan, through Secretary Ministry of Law and Parliamentary Affairs, Islamabad.

2.Citibank (Egerton) Road, Lahore through M. Shariq Butt, Branch Manager and duly authorized attorney of the Bank Respondents

Counsel for the petitioner ... Nil Counsel for the Federation ... Mr. Muhammad Nazir Abbasi, Advocate

Date of Institution ... 05.01.2002 Date of hearing ... 02.05.2013

Date of decision ... 02.05.2013

-o-

JUDGMENT

ALLAMA DR, FIDA MUHAMMAD KHAN. Judge.-

Petitioner/Zahida Haq through this petition filed under Article 203-D of the Islamic Republic of Pakistan, has challenged Sections 10 of the Financial Institution (Recovery of Finances) Ordinance, 2001 and prayed that the said sections may be examined on the touchstone of the Injunctions of Jslam and Consequently, the same may be declared ineffective, inoperative and not capable of being endorsed from 31.05.1997 i.e. the date of Promulgation of the Act No. XV of 1997. The impugned sections are reproduced as under:-

“Section 10. Leave to defend:

(1)In any case in which the summons has been served on the defendant as provided for in sub section (5) of Section 9, the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court as hereinafter provided to defend the same; and in default of his doing so, the allegations o f fact in the plaint shall be deemed to be admitted and the Banking Court may pass a decree in favour o f the plaintiff on the basis thereof or such other material as the Banking Court may require in the interests of justice.

(2)The defendant shall file the application for leave to defend within thirty days o f the date of first service by any one of the modes laid down in sub section (5) o f section 9:

Provided that where service has been validly effected only through publication in the newspapers, the Banking Court may extend the time for filing an application for leave to defend if satisfied that the defendant did not have knowledge thereof.

(3)The application for leave to defend shall be in the form of a written statement, and shall contain a summary o f the

substantial questions o f law as well as fact in respect of which in the opinion the defendant, evidence needs to be recorded.

(4)In the case o f a suit for recovery instituted by a financial institution the application for leave to defend shall also specifically state the following:-

(a)The amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payment;

(b)The amount o f finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution o f the suit;

(c)The amounts o f finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit;

(d)The amount if any which the defendant disputes as payable to the financial institution and facts in support thereof.

Explanation.-- For the purposes of clause (b) any payment made to a financial institution by a customer in respect of a finance shall be appropriated first against other amounts relating to the finance and the balance, if any against the principal amount o f the fnance:-

(5)The application for leave to defend shall be accompanied by all the documents which in the opinion of the defendant support the substantial questions of law or fact raised by him.

(6)An application for leave to defend which does not comply with the requirements of sub-sections (3), (4) where applicable and (5) shall be rejected, unless the defendant discloses therein sufficient cause for his inability to comply with any such requirement

(7)The plaintiff shall be given an opportunity of filing a reply to the application for leave to defend, in the form of a replication.

(8)Subject to section 11, the Banking Court shall grant the defendant leave to defend the suit if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto it is o f the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded.

(9)In granting leave under sub-section (8), the Banking Court may imposed such conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit o f cash or furnishing o f security.

(10)Where the application for leave to defend is accepted, the Banking Courts shall treat the application as a written statement, and in its order granting leave shall frame issues relating to the substantial questions of law or fact, and subject to fulfillment o f any conditions attached to grant of leave, fix a date for recording o f evidence thereon and disposal o f the suit.

(11)Where the application for leave to defend is rejected or where a defendant fails to fulfill the conditions attached to the grant o f leave to defend, the Banking Court shall forthwith proceed to pass judgment and decree in favour of the plaintiff against the defendant.

(12)Where an application for leave to defend has been filed before the coming into force of this Ordinance, the defendant shall be allowed a period of twenty-one days from the date of coming into force o f this Ordinance, or form the date of first hearing thereafter, whichever is later, for filing an amended application for leave to defend in accordance with the provisions of this Ordinance. ”

2.This petition was dismissed for non-prosecution on 25.11.2008 but restored on 6.7.2010. Thereafter this petition was fixed on k 18.10.2010 and 17.12.2010 but got adjourned on account of absence of the

petitioner. It came for final hearing before us on 2.5.2013 but the petitioner remained absent, inspite service of notice through her son, without any intimation to the office even..

3.We have heard learned Standing Counsel on behalf of the Federal Government and thoroughly examined the contents of the petitioner wherein her contentions have been elaborately discussed. The learned Standing Counsel submits that section 10 of the Financial Institutions (Recovery of Finance) Ordinance XLVI of 2001 is already under review before the Hon’ble Supreme Court of Pakistan.

4.On our direction, the Office has confirmed from Superintendent (Civil-1) that C.P.No.291/2009, which had been filed in the Hon’ble Supreme Court of Pakistan was converted into Civil A. No.

254/2009, and the judgment in that respect has been reserved on

5.In view of the above position, this petition not being Islamabad the 2nd May. 2013 Mujeeb-ur-Rehmanl*